Canceling the Antitrust Show? Live Nation-Ticketmaster’s Latest Attempt To Keep Its Monopoly
Live Nation-Ticketmaster has filed a motion for summary judgment to persuade the judge presiding over the antitrust lawsuit against the company that the government has not turned up enough evidence of wrongdoing or harm to consumers. Diana L. Moss refutes the motion’s main arguments and defends the government’s lawsuit.
On November 18, Live Nation-Ticketmaster filed a motion for summary judgment in the federal and state antitrust lawsuit against the company. The case was brought in 2024 by the United States Department of Justice (DOJ) under the Biden administration and 40 state attorneys general. Plaintiffs in the landmark Sherman Act case allege that Live Nation-Ticketmaster uses its monopoly power in primary ticketing services for major venues, concert promotion, and venue management to stifle competition, harming consumers, rival concert promoters, and artists.
If successful, the DOJ’s case would bring tangible relief to millions of U.S. music fans, many of whom take a keen interest in the case that even extends to grassroots mobilization efforts to support it. The most likely remedy is breaking off Ticketmaster, the dominant ticketing platform in the U.S., from Live Nation, which is equally dominant in concert promotion and venue management. This would eliminate the company’s supercharged incentives to use its monopoly power across markets in the live events supply chain to foreclose competition in primary ticketing.
By wielding its power, the live events behemoth continues to hobble competition, including smaller primary ticketers and resale ticketing services. The reality is that consumers have virtually no choice in primary ticketing providers. As a result, they pay monopoly ticket fees and are captive to Live Nation-Ticketmaster’s outdated and glitchy technology. Consumers desperately need relief from its anticompetitive conduct to lower ticket fees, get better quality service, and improve access to live entertainment.
Live Nation-Ticketmaster’s motion seeks to convince Judge Arun Subramanian of the Southern District of New York that the evidence produced in the case doesn’t support the government’s claim. If so, the judge can decide it now, as a matter of law, without a trial. But Live Nation-Ticketmaster’s “nothing to see here” routine doesn’t hold much water, for reasons that range from the 10,000-foot view to the nitty-gritty of law and economics.
It’s hard to ignore ticket buyers’ frustration
Even to the untrained antitrust eye, the facts don’t stack up nearly enough for the court to decide that the DOJ doesn’t have any evidence. Consumers have an overpowering dislike for the live events behemoth, and they feel trapped and ripped off because they have little to no choice in shopping for a ticket in the primary ticketing market. This has been the norm for decades and the reality will be hard to avoid in a trial.
For example, concert-goers are not surprised when they learn that Live Nation-Ticketmaster has an eye-popping 80% share of primary ticketing for major concert venues. What music fans may not know is that the company also has a hefty 60% market share in concert promotion and controls 75% of ticket sales by venues under exclusive contracts. Those contracts—which are a major tool for maintaining its monopoly—require venues to take Ticketmaster’s services or risk Live Nation withholding talent.
Finally, there is the resale market, with which fans are well familiar. There, the live events behemoth uses ticket “holdbacks,” “slow ticketing,” and “revolving bar codes” to make it hard to use resale tickets, thus steering ticket buyers back to its own ticketing platform. All said, consumers have given their full-throated support to the government’s case, including the prospect of breaking up the company. The courts, not consumers, will decide whether Live Nation-Ticketmaster’s actions violate antitrust law. But its hand waving should not distract the court from the implications of public opinion.
Live Nation-Ticketmaster’s house of cards
Live Nation-Ticketmaster’s Motion for Summary Judgment urges the court to embrace two basic fallacies. When exposed, they bring down the whole motion. The first fallacy is that by approving the merger of Live Nation and Ticketmaster in 2010, the DOJ essentially signed off on the pro-competitive benefits of vertical integration….forever. If the merger was nothing but beneficial into perpetuity, then how could Live Nation-Ticketmaster’s conduct since the merger be anticompetitive?
This theory defies reality. The DOJ admitted to committing a fatal error in 2010. Live Nation-Ticketmaster violated the conditions set out in the consent order, forcing the DOJ a decade later, under the first Trump administration, to reopen it. The centerpiece of this effort was testimony from six anonymous venues that they were threatened or harassed if they declined to take Ticketmaster’s ticketing services. The DOJ under the Biden administration took the final and necessary step by bringing the antitrust case that is currently before the court.
The second fallacy in Live Nation-Ticketmaster’s motion is that the DOJ misses the whole point. The motion says, essentially, there is competition in ticketing, but it is happening where the DOJ doesn’t look. That is, ticketing rivals compete when they bid on venues’ requests for proposals for ticketing services. This competition “for the contract” should blunt, if not eliminate, the DOJ’s concern over Live Nation-Ticketmaster’s anticompetitive exclusive contracts.
This theory is also flawed. To support it, the motion trots out the Ticketmaster v. Tickets.com case from the early 2000s, where a court agreed with the idea of competition “for the contract.” The only hitch is that market developments over the last 25 years have completely overtaken it. With the 2010 merger that combined Live Nation and Ticketmaster, integration across concert promotion, venue management, and primary ticketing supercharged the company’s incentives to stifle competition. Exclusive contracts with venues are well known to operationalize those incentives.
The dominance of Live Nation-Ticketmaster’s market positions means one thing. The monopoly is the only game in town, so there is little, if any, opportunity for anyone to compete “for the contract.” When this fallacy collapses, along with the fiction that the 2010 merger will forever deliver benefits to consumers, the motion’s “house of cards” comes crashing down.
Calling foul on the central pillars of DOJ’s case
Knowing that the court will be skeptical of Live Nation-Ticketmaster’s big picture arguments, its motion moves to discredit the two pillars of DOJ’s case that are required to support a monopolization claim under the Sherman Act. One is showing that Live Nation-Ticketmaster possesses monopoly power, and the second is that the company acted anticompetitively to maintain its monopoly. In practical terms, the first prong requires the government to show that the company is dominant in a correctly “defined” market. The second requires the DOJ to show that Live Nation-Ticketmaster’s anticompetitive conduct caused harm to consumers.
A. “The DOJ is Looking at the Wrong Market”
Live Nation-Ticketmaster disputes the DOJ’s market definition. In precise terms, this market is the “provision of primary concert ticketing offerings to fans at major concert venues,” where the DOJ argues that fans pay monopoly ticket fees. The market includes amphitheaters and arenas with seating capacity for 8,000 or more, and that host 10 or more concerts a year. Live Nation-Ticketmaster’s motion calls foul, asserting that the government “gerrymandered” the market to be too narrow in order to guarantee a finding of monopoly power. If the market is wrong, then the government cannot prove anything.
Live Nation-Ticketmaster says the market is far larger than the government’s major venue market and should instead include all venues: massive stadiums, concert venues, and small concert halls and clubs. A larger market would, of course, include more competitive alternatives for consumers, thus assuaging concern over Live Nation-Ticketmaster’s monopoly power. The motion points out that in its alternative, all venue market, Live Nation-Ticketmaster’s market share is below 50%: far lower than 80% in the major venue market.
This dispute falls under its own weight. Most concert-goers are not often in the market for a stadium-grade show, and certainly not 10 times a year. Think of Taylor Swift and other A-list artist shows with four-digit ticket prices that are orders of magnitude higher than what fans pay to see artists at smaller venues that are still “major.” Also think of small venues that may host up-and-coming musicians and bands of yester-year. There is demand for these shows, but let’s just say, far fewer fans want to go.
Industry sources confirm that price ranges for small, medium, and large concert venues are distinctly different. This means that demand for these venues is also distinctly different. Practically speaking, consumers do not view concerts in stadiums at sky-high prices (with food and merch prices to match), or in small clubs and theaters at modest prices (and eight-dollar draft beers) as good substitutes.
In antitrust-speak, all of this means that events at larger and small venues don’t provide a competitive “check” on prices at the major venues that are frequented by the bulk of concert-goers and where Live Nation-Ticketmaster’s monopoly power runs rampant. The DOJ’s major venues market definition should pass the litmus test, paving the way for the court to find that Live Nation-Ticketmaster possesses monopoly power.
B. “The DOJ Fails to Demonstrate Anticompetitive Effects”
Knowing they face an uphill battle with the court on defining the right market, Live Nation-Ticketmaster pivots to another beef. That is, the DOJ fails to demonstrate that exclusive contracts (read, a tried and true method for stifling competition, when wielded by a monopolist) aided Live Nation-Ticketmaster in maintaining its monopoly power. The motion cherry-picks the record in search of support for this assertion.
For example, the record shows that venues “seek and prefer” exclusive contracts.Needless to say, when a monopoly decrees that the exclusive contract is the standard for the industry—as Live Nation-Ticketmaster has effectively done—there is nothing else for venues to “seek or prefer.” The company has papered over this reality by making exclusives lucrative for venues. Sharing in Live Nation-Ticketmaster’s monopoly profits can absolutely be rigged to outweigh the benefits of more competition in ticketing.
Live Nation-Ticketmaster’s motion also breezes past well-known legal doctrine that while exclusive contracts can be pro-competitive, they often run afoul of the antitrust laws when used by a dominant firm to maintain a monopoly. And the motion sidesteps important legal precedent when it demands direct evidence of anticompetitive harm from exclusive contracts, such as high prices, reduced output, or lower quality.
That is, when the government seeks only to stop a company from behaving anticompetitively (i.e., injunctive relief), it is held to a more relaxed standard. Namely, the government can “infer” causation, or that the bad conduct caused the harm, when it “reasonably appears capable” of significantly contributing to maintaining a monopoly. This makes total sense. How can the government calculate “competitive” ticket fees—against which it would compare Live Nation-Ticketmaster’s high monopoly fees in order to provide the demanded proof—when the company has dominated for so long?
The DOJ’s claim that exclusive contracts are a major tool for maintaining its monopoly should, therefore, also pass muster in court. And in sinking deep foundations for the two major pillars required to carry its monopolization case against Live Nation-Ticketmaster, the DOJ’s case should survive the Motion for Summary Judgment. This is certainly what consumers deserve. And it is what is badly needed to allow the DOJ’s case to advance, so that everyone gets a fair shot at competing in the ticketing market and consumers reap the benefits.
Author’s Disclosure: Diana Moss works for the Progressive Policy Institute. PPI is supported by corporations, individuals, and foundations such as the Lumina Foundation, Peterson Foundation, and Arnold Foundation. No funding source influenced the arguments expressed in this article or stands to benefit from them.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
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